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Corporate Governance and Administration Conference

Corporate Governance and Administration Conference. Jury’s Hotel, Ballsbridge 25 March 2003. “Ensuring Compliance in Your Company”. Paul Appleby Director of Corporate Enforcement. Outline of Presentation. Role of the ODCE Interaction with Agencies/Professional Bodies

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Corporate Governance and Administration Conference

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  1. Corporate Governance and Administration Conference Jury’s Hotel, Ballsbridge 25 March 2003

  2. “Ensuring Compliance in Your Company” Paul Appleby Director of Corporate Enforcement

  3. Outline of Presentation • Role of the ODCE • Interaction with Agencies/Professional Bodies • Directors’ Duties to ensure Compliance • ODCE’s Investigative/Enforcement Role • What to do if approached by ODCE

  4. Role of the ODCE • Encouraging Compliance • Uncovering Company Law Breaches • Prosecuting Detected Breaches • Sanctioning Improper Conduct in Insolvent Companies • Delivering Quality Services

  5. Interaction with Agencies/Bodies (1) Compliance • Development of Guidance for Company Directors, Auditors, Liquidators, etc. • Promotion of Compliance Message • Legislative Change/Implementation

  6. Interaction with Agencies/Bodies (2) Investigation/Enforcement • Persons subject to a Reporting Obligation • Information-Sharing Arrangements • CRO, Courts, DPP’s Office, etc.

  7. Directors’Duties (1) • The Company – a Separate Legal Person • General Duties of Directors • Act in the Company’s (not Personal) Interest • Act with Due Care, Skill and Diligence • Defined Legal Obligations/Constraints • Disclosure Requirements

  8. Directors’Duties (2) Company Documents to be kept,updated and made available • Register of Members • Register of Directors and Secretary • Register of Directors’/Secretary’s interests • Register of debenture holders • Directors’ Service Contracts • Minute Books

  9. Directors’Duties (3) Basic Operational Obligations • Keeping proper books of account • Holding the annual general meeting (AGM) • Circulating to members before every AGM a signed copy of the balance sheet, profit and loss account, director's and auditor's report • Holding an extraordinary general meeting when circumstances require

  10. Directors’Duties (4) General Filing Obligations • Change in constitution of company • Change in registered office • Change of directors/secretary • Increase in Nominal/Issued Capital • Annual return • Mortgages and charges

  11. Directors’Duties (5) Burden of Proof • 1963-2001: Burden with the Prosecutor to prove “knowing and wilful default” • Now: Burden with the Defendant to prove that he took “all reasonable steps to prevent” default

  12. Investigative/Enforcement Role (1) Main Triggers for Investigation • Auditor Reports of Indictable Offences • Liquidator Reports on Insolvent Companies • Public Complaints • Matters in the Public Domain

  13. Investigative/Enforcement Role (2) Process of Investigation • Filtering • Assessment • Collection of Evidence • Decision-Making

  14. Investigative/Enforcement Role (3) Decision Options • Voluntary Compliance • Insufficient Evidence • Civil Remedy • Restriction/Disqualification • Summary Prosecution • Prosecution on Indictment

  15. What to do if contacted by ODCE Don’t Panic! • May be no element of culpability Co-operate! • Entitled to seek certain registers, etc. • Seek professional advice in case of doubt • May require search warrant in other cases

  16. Sources of Information www. odce .ie • About the ODCE • ODCE Services • ODCE Publications/Statements • Legislation • Court Decisions

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